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March 18, 2011

Latest chapter in notable federal acquitted conduct case from DC

As detailed in this local piece from the Washington Times, which is headlined "D.C. man gets 18 years for $600 drug deal," a notable federal criminal case involving acquitted conduct finally resulted in a sentencing outcome yesterday. Here are some of the specifics:

More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington, convicting him solely of a $600, half-ounce drug deal.

But at Ball's long-delayed sentencing Thursday, U.S. District Judge Richard W. Roberts disagreed, saying he saw clear evidence of a drug conspiracy before sentencing Ball, 40, to more than 18 years in prison for his conviction of the 2001 hand-to-hand drug transaction. The judge's ruling in federal court in Washington shines a light on a little known practice called acquitted conduct sentencing that lets judges mete out tougher prison terms based on conduct jurors rejected.

Arguing Ball was the ringleader of a gang called the Congress Park Crew, prosecutors pointed to, among other things, testimony from cooperating witnesses in the federal drug case as well as guilty pleas by people who said they saw Ball dealing drugs and carrying guns. Assistant U.S. Attorney Gilberto Guerrero Jr. argued that Ball caused "havoc" in Congress Park that "destroyed people's lives."

Meanwhile, Ball's defense attorney, John Carney, cited testimony of people who worked with Ball on various community projects in Congress Park, including a former U.S. Parole Board commissioner, Janie Jeffers, who called Ball "a catalyst" for improving the neighborhood.

Mostly, Mr. Carney pointed to the words of a juror in the case, Jim Caron, who died not long after writing a letter to the judge after the trial. "Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly," Mr. Caron wrote. "This is one of the few times we know exactly what the jury was thinking," Mr. Carney argued. Prosecutors disagreed: "That's one person's perspective," said Mr. Guerrero.

Defense lawyers also argued in court memos that if the judge relies on acquitted conduct, Ball unfairly would get a prison term far longer than what he'd receive under the federal sentencing guidelines. But prosecutors pointed out that those guidelines are advisory, not mandatory, and that selling five or more grams of crack cocaine by law carries a sentence anywhere from five to 40 years in prison.

Judge Roberts said the "stark duality" of Ball's persona was "confounding and tragic." And he said while he respected the jury's verdict, he couldn't turn a blind eye to what he called "clear and convincing" evidence that Ball was part of a long-running conspiracy to deal crack cocaine in Congress Park. The judge did not otherwise address Mr. Caron's letter, which was later cited by Gilbert S. Merritt Jr., senior judge on the 6th U.S. Circuit Court of Appeals, in an unrelated case in Kentucky involving acquitted conduct issues.

Judge Roberts said his reliance on acquitted conduct in determining a sentence for Ball was proper. He also gave Ball credit for the time he's served since being locked up in April 2004, and he reduced his sentence by 15 months because of delays in carrying it out.... A co-defendant in the case, David Wilson, was sentenced to 45 years in prison last week. He was convicted in two murders and on drug charges.

In a sentencing memo, prosecutors called for a 40-year sentence for Ball on the basis of, among other things, "ample evidence" that Ball was the leader of a criminal conspiracy. Other "acts of violence, witness intimidation and other obstructive acts," prosecutors argued, "show what a true danger Ball is." The prosecutors also said they were asking for a tougher sentence for Ball not on the basis of acquitted conduct, but uncharged conduct — or actions the jurors were never asked to consider.

By contrast, defense attorneys called the jury verdict a "virtually total rejection" of the government's case against Ball. Ball's sentence is likely to be appealed.

I am pleased to see that the acquitted conduct issue has been preserved by Ball's counsel and that he apparently has plans to appeal his client's sentence. Though the DC Circuit has upheld the constitutionality of acquitted conduct sentencing since Blakely and Booker, at some point in some way some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct. And such a ruling may be what is needed to convince the Supreme Court that this issue merits re-examination in light of Blakely and Booker.

Some older posts on the Ball case and acquitted conduct sentencing enhancements:

Comments

"...such a ruling may be what is needed to convince the Supreme Court that this issue merits re-examination in light of Blakely and Booker."

Of course Booker is exactly the problem, or at least the remedial portion thereof.

Based on the Apprendi/Blakely line of cases, the Booker Court had a choice of remedies to fix the guidelines. One was to require the government to prove significant sentencing facts BRD and (if the defendant so desired) to a jury.

The second was to continue to permit the judge to find those facts by less than a BRD standard (which had been pre-existing practice), but to render the guidelines advisory.

Both the defense bar and DOJ supported the advisory option, and by a 5-4 split, the SCOTUS went along with it.

Today, and for hardly the first time, we see the results.

What needs re-visiting is Booker's remedy. We need to go back to mandatory guidelines and THEN implement Blakely's proof requirement concerning sentencing facts.

But it ain't happening. Why?

Because the Sentencing Commission, while holding hearings on relative minutiae, as it did yesterday, continues, now for the sixth year, to snore past the central job for which it was created, that being the implementation of mandatory guidelines.

It's not just that Justice Stevens got this right in his dissent in Booker, and that Justice Souter got it right in his concurrence in Gall. It's that it's been obvious for years.

We can have a neat philisophical debate about the relevant conduct rule, or we can demand concrete action. Specifically, the Sentencing Commission can act to point Congress toward the re-examination of a remedy that Justice Breyer all but invited in his majority opinion.

If the Commission has so completely forgotten the central purpose for which Congress established it, there is no reason that, in tough budget times, Congress should continue to lavish millions on it. It's not like this is a new problem, and it's not like, without action, we won't see, in the future, dozens if not hundreds of cases just like today's.

Posted by: Bill Otis | Mar 18, 2011 10:43:39 AM

Bill,

Why should the USSC bother itself with such a daunting task as convincing COngress that proving sentencing facts to jurors BRD is the way to go? Why push the boundaries of such a nice cozy sinecure? It's not like they are actually in danger of elimination.

I forget where I saw it, but in any organization there are two types of people. The first type is dedicated to the mission of the organization (think teachers struggling with unruly students, hostile administration and indifferent parents). The second type exists the further the organization itself, and always end up writing (and enforcing) the rules under which the organization operates. Our government is, unfortunately, completely under the sway of this second type of person and I don't see anything changing until Uncle Sam tries to get another loan but can't find anyone willing to take the paper.

Posted by: Soronel Haetir | Mar 18, 2011 11:16:59 AM

Bill,
First, let me say how kind of you to be commenting on the unjust nature of Mr. Ball's sentence, advocating that his enhancements should be proven BRD.

But second, say what you will now about the desirability of mandatory guidelines super-imposed with guideline findings BRD. You don't, however, get to re-write history.

You say "[b]oth the defense bar and DOJ supported the advisory option." That is incorrect. The defense bar did not advocate for advisory guidelines in Booker. The National Association of Federal Defenders and the National Association of Criminal Defense Lawyers filed amicus briefs arguing that enhancements should be plead and proven within the existing guideline scheme (as did the Messrs. Booker and Fanfan themselves). In other words, had the defense bar got its way in Booker, Mr. Ball's enhancements would have had to be plead and proven BRD, and the resulting range would have operated just as it did pre-Booker.

It may pain you know that you are now advocating for a system that the defense bar wanted 6 years ago in Booker, to which the DOJ resisted. But at least acknowledge that reality.

I won't hold my breadth, though, as you refuse to acknowledge the reality that the guidelines continue to drive sentencing practice, even in a post-Booker advisory world.

Posted by: DEJ | Mar 18, 2011 12:26:00 PM

What about an as-applied Sixth Amendment violation here? Absent the judicial fact-findings, the sentence would be unreasonable (or so the argument would go).

Posted by: DEJ | Mar 18, 2011 12:49:07 PM

DEJ --

1. "First, let me say how kind of you to be commenting on the unjust nature of Mr. Ball's sentence..."

I don't recall saying it was unjust. And what's with the sarcasm? There was no sarcasm in my post -- is there some reason it's needed in yours?

2. "...advocating that his enhancements should be proven BRD."

Yes, if we return to mandatory guidelines, which is what Stevens and Souter suggested (a fact you don't dispute), some enhancements would need to be proven BRD. But "just" is a layman's word, and in my view, a just sentence is one the defendant's actual behavior has earned. The standard of proof required to demonstrate actual behavior is a procedural question, and an important one, but -- for example -- the standard of proof that freed OJ does not mean he didn't do it. I don't know of a single serious person who thinks he didn't do it.

3. "The National Association of Federal Defenders and the National Association of Criminal Defense Lawyers filed amicus briefs arguing that enhancements should be plead and proven within the existing guideline scheme (as did the Messrs. Booker and Fanfan themselves)."

I'll assume you're right about that, although that is not my memory. Making that assumption, I appreciate the correction and apologize for the error. I know for a fact, however, that many defense lawyers were pushing for a BRD-type remedy, and contiue to do so.

4. "It may pain you know that you are now advocating for a system that the defense bar wanted 6 years ago in Booker, to which the DOJ resisted."

No, unlike the "they're-all-innocent" and "Amerika stinks" ideologues who occasionally appear on this site, I will happily go with the other side when I think they have the better case (just as Doug supports the DP although in most other ways tends toward the liberal side). For example, I support video-taping interrogations and enhanced pay for many appointed defense counsel.

"But at least acknowledge that reality."

Contrary to what you imply, I have long supported the BRD standard as the correct Blakely remedy in a mandatory guidelines system. I did this, for example, and publicly, in my article in the FSR more than two years ago ("Priority for a New Administration: Restore the Rule of Law in Federal Sentencing," and again in the most recent issue, "The Sad, Slow Swoon of the Sentencing Suggestions," available here,
https://docs.google.com/a/fed-soc.org/viewer?a=v&pid=explorer&chrome=true&srcid=0B5HjNVIrveCFZTc5YjAxNTAtZDE3ZC00YTM5LTg5MzMtNjBkNjE5NzZkNmRk&hl=en&pli=1).

5. "I won't hold my breadth, though, as you refuse to acknowledge the reality that the guidelines continue to drive sentencing practice, even in a post-Booker advisory world."

Whether you hold your breath is up to you. My own breathing will continue normally while you refuse to acknowledge that there has been a clear drift away from guidelines sentencing over at least the last six years, if not longer. Within range sentences are now given in slightly less than 55% of the cases. In the years after the guidelines first became effective in November 1987, it was over 75%. If you have a problem, it's with the Sentening Commission's statistics, not with me.

The guidelines "drive" sentencing practice only in the empty sense that they reflect the usual sentences that were given before guideline ranges were developed. Indeed, that's HOW they were developed -- from existing practice at the time the guidelines were being written.

P.S. For all your "correcting" the historical record about consideration of acquitted and uncharged conduct, you mangaged to omit the most pertinent Supreme Court case, US v. Watts, 519 U.S. 148 (1997), in which the defendant got blown out. You also bypassed the most pertinent statute, 18 U.S.C. 3577: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."

Posted by: Bill Otis | Mar 18, 2011 1:40:46 PM

i loved this comment!

" Mr. Ball's enhancements would have had to be plead and proven BRD, and the resulting range would have operated just as it did pre-Booker."

Seems you all missed this part!

"More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington,"

These illegal enhancments the judge is using to up his sentence WENT to a jury and were REFUSED and he was aquitted on them. THAT makes this judge a traitor to his oath of office and eligible for execution as a traitor in wartime by any american who wants to do the job.

Posted by: rodsmith | Mar 18, 2011 2:03:55 PM

sorry bill but this is wrong!

"You also bypassed the most pertinent statute, 18 U.S.C. 3577: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."

Statue DOESN'T trump U.S. Constution that says if your not convicted of it...IT DIDNT' HAPPEN!

Posted by: rodsmith | Mar 18, 2011 2:05:59 PM

Bill to DEJ: "What's with the sarcasm?"

My guess is that the sarcasm was prompted by your purported expertise on the position of the defense bar. It gets annoying, particularly when you don't even have your facts straight (e.g., re what the defense bar's position actually was at the time of Booker).

Posted by: member of the defense bar | Mar 18, 2011 2:09:10 PM

member of the defense bar --

1. Is that your entire response?

2. Do you think I should be sarcastic when my postions are repeatedly mis-stated by defense lawyers? As, for example, when DEJ falsely implied that I'm a newcomer to the BRD remedy proposed in Stevens' Booker dissent?

3. Have you expressed any ettiquette-related qualms when Kent, federalist and I were (and are) referred to as Nazis, "torture cheerleaders," bloodlusters, barbarians, murderers and savages -- all for the "crime" of supporting the death penalty?

Posted by: Bill Otis | Mar 18, 2011 2:21:45 PM

Bill,

First, it seems odd that you, of all people, are detailing the position of the defense bar and also complaining that the problem in this case is that a defendant did not get the benefit of BRD findings. Hence the sarcasm.

Second, yes, "many defense lawyers were pushing for a BRD-type remedy," and that was my point. It was the defense bar that wanted pleading and BRD findings, which would cause the resulting GL to be mandatory. It was the DOJ, conversely, who wanted advisory Guidelines. And yes, Stevens and Souter believed that the correct course in Booker was mandatory guidelines; that was the point of their dissent. My only point was that you were incorrect to attribute a contrary argument to the defense bar. Similarly, I never implied that you did not support the BRD remedy. I only asked that you acknowledge it was mainly an argument of the defense bar in Booker.

I'm guessing you have trouble understanding figurative language, since you take my "holding breath" comment literally. Here's some help for you: http://idioms.thefreedictionary.com/Don't+hold+your+breath

Concerning the continuing strength of the guidelines, we’ve been over this before. Your claim that “[w]ithin range sentences are now given in slightly less than 55% of the cases” is the prototypical example of a disingenuous argument, when suggesting that the guidelines are meaningless, especially after Booker. My problem, in turn, is not with the statistics, but with your selective citation of them.

The reality of these statistics is that a total of only 14% of sentences were the result of post-Booker variances – not the 45% figure your post would imply. (And how many of those 14% can be attributed to guidelines that almost everyone agrees are excessive, such as crack and 2G2.2?). Even the 14% figure is inflated because many of those “variances” would have been “departures” pre-Booker, but the court characterized them as “variances” simply because its safer and easier to do so. Quite simply, Booker is not the bull-in-a-china-shop you hope to convey. (Oh, whoops. There’s I go again with figurative language. If you need help with that one, just google it.)

Your complain about the advisory guideline system is disparity and luck-of-the-draw sentencing. Towards that end, you conveniently leave out how 25% of the 45% non-GL sentence citation you like so much is from government-sponsored downward departures. The choice of judge has little, if anything, to do with such non-GL sentences, and again, neither does Booker.

Posted by: DEJ | Mar 18, 2011 2:48:48 PM

Concerning the P.S.:
My comment was not on the merits of using acquitted conduct. Hence, no reference to Watts or 18 USC 3577. On that subject, however, I will say there may be due process concerns, as well as a potential as-applied Sixth Amendment challenge.

To be clear, I was making two points with my comment: 1) the defense bar's position in Booker was to plead and prove BRD enhancements within the existing mandatory guideline system, and 2) any suggestion about Booker's remedy wreaking such havoc is unfounded.

Posted by: DEJ | Mar 18, 2011 2:59:51 PM

DEJ --

"...when suggesting that the guidelines are meaningless, especially after Booker."

I don't recall saying that the guidelines are "meaningless." Where was that?

Talk about attributing to people positions they don't hold. Good grief. It is true, however, that the percentage of within-range sentences is lower now than at any time in the guidelines' 24-year history. But that's something you don't tell us.

If, as you say, you were not intending to address the "merits of using acquitted conduct," then I believe you are missing what is by far the major theme of the post Doug put up.

What the defense bar says and what DOJ says are all well and good, but what Congress and the Supreme Court say is considerably more important.

I have posted about this today on Crime and Consequences, http://www.crimeandconsequences.com/crimblog/2011/03/acquitted-conduct-at-sentencin.html.

For those who wish to discuss the substantive law of using acquitted conduct, comments there are welcome, and I will address them.

Posted by: Bill Otis | Mar 18, 2011 3:34:59 PM

"I don't recall saying that the guidelines are 'meaningless.'"

You are correct. Meaningless may have been too strong of a word. But the spirit of my comment is certainly consistent with the spirit of your frequent commentary about the post-Booker sentencing system.

"I believe you are missing what is by far the major theme of the post Doug put up"

I am grateful for Professor Berman's posts and blog. Comments, however, are sometimes meant to be responsive to other comments, as mine was to your's.

"What the defense bar says and what DOJ says are all well and good, but what Congress and the Supreme Court say is considerably more important."

Here, in response to your initial comment, we are not talking about the defense bar's or DOJ's position on acquitted conduct. We are talking about Booker's remedy (again, only because of your initial comment).

Posted by: DEJ | Mar 18, 2011 4:28:51 PM

Why does the United States Code even authorize an eighteen years plus sentence for a $600, half-ounce drug deal?

Clearly this judge abused his discretion, and clearly there is a very deep problem with any system in which acquitted conduct may be openly considered by a judge in setting a sentence.

But, Congress deserves some blame too in providing judges with ridiculously broad discretion to impose long sentences for petty crimes and relying on the Sentencing Guidelines rather than its own judgment to narrow that discretion.